WA No. 2662 of 2017 (Against the judgment in W.P.(C) No.14385 of 2011, High Court of Kerala, dated 16.12.2016)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** # **`THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR`** ## **`&`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` THURSDAY, THE 24[TH] DAY OF NOVEMBER 2022 / 3RD AGRAHAYANA, 1944 ``` ``` WA NO. 2662 OF 2017 ``` ``` AGAINST THE JUDGMENT IN WPC 14385/2011 OF HIGH COURT OF ``` ``` KERALA DATED 16.12.2016 ``` ## **`APPELLANTS/RESPONDENTS 1 & 2:`** - `1 UNION OF INDIA REP. BY THE UNDER SECRETARY TO GOVERNMENT, MINISTRY OF HOME AFFAIRS, FREEDOM FIGHTER'S DIVISION,LOK NAYAK BHAVAN, NEW DELHI` - `2 THE UNDER SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF HOME AFFAIRS,FREEDOM FIGHTER'S DIVISION,LOK NAYAK BHAVAN, KHAN MARKET, NEW DELHI` ``` BY ADVS. ``` ``` SRI.S.MANU, DEPUTY SOLICITOR GENERAL OF INDIA JAISHANKAR V.NAIR, CGC ``` ## **`RESPONDENTS/PETITIONER & 3RD RESPONDENT:`** - `1 SMT.KELOTHU VALAPPIL KUNHATHI (EXPIRED) W/O NARAMBAN KORA, KELOTHU VALAPPIL, P.O.KOOTTUMUGHAM,SREEKANDAPURAM, KANNUR- 670 631` - `2 THE PRINCIPAL SECRETARY TO GOVERNMENT OF KERALA GENERAL ADMINISTRATION (FFP, B) DEPARTMENT, THIRUVANANTHAPURAM- 695 001` - `3 SHRI.KUNJIRAMAN, S/O.KELOTH VALAPPIL KUNHATHI , KELOTHU VALAPPIL HOUSE, SREEKANDAPURAM P.O.,KANNUR-670 631.` _**W.A.2662/2017**_ 2 - `4 SMT.NARAYANI, D/O.KELOTH VALAPPIL KUNHATHI, KELOTHU VALAPPIL HOUSE, SREEKANDAPURAM P.O.,KANNUR-670 631.` - `5 SMT.KAMALA, D/O..KELOTH VALAPPIL KUNHATHI, KELOTHU VALAPPIL HOUSE, SREEKANDAPURAM P.O.,KANNUR-670 631.` - `6 SMT.KARTHIYAYANI, D/O.KELOTH VALAPPIL KUNHATHI, KELOTHU VALAPPIL HOUSE, SREEKANDAPURAM P.O.,KANNUR-670 631.` - `7 SMT.PADMINI, D/O.KELOTH VALAPPIL KUNHATHI , KELOTHU VALAPPIL HOUSE,SREEKANDAPURAM P.O.,KANNUR-670 631.` ``` ADDL.R3 TO R7 IMPLEADED AS PER ORDER DATED 24.01.2020 IN I.A.1/2019 IN WA 2662/2017. ``` ``` THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 24.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` _**W.A.2662/2017**_ 3 ## J U D G M E N T Dated this the 24[th] day of November, 2022 ## S. Manikumar, CJ. Instant writ appeal has been filed by the Union of India, Ministry of Home Affairs, Freedom fighters Division (FFR Division), New Delhi, challenging the judgment dated 16.12.2016 in W.P.(C) No.14385 of 2011, by which, the writ court allowed the writ petition directing the appellant herein to grant pension to the writ petitioner, in accordance with the scheme, within a period of three months. 2. Material on record discloses that the writ petitioner is the widow of late Naramban Koaran. She claimed that her husband took part in the freedom struggle, and got arrested on 22.2.1947, in connection with Kavumbai Struggle and underwent imprisonment. Offences leveled against him were under Section 147 and 323 of IPC and he was under trial from 22.2.1947 till 2.11.1947. He was convicted on 21.7.1947 to undergo rigorous imprisonment for one year, under Section 147 of IPC and rigorous imprisonment of 6 months, under Section 323 of IPC. Writ _**W.A.2662/2017**_ 4 Petitioner also claimed that her husband was released on 2.11.1947. 3. Claiming to have participated in the Kavumbai struggle, which had been recognised for sanction of SSS Pension, husband of the writ petitioner, late Naramban Koaran, had applied for the grant of SSS Pension, vide application dated 24.6.1981. In the absence of necessary recommendation from the State Government, the Central Government rejected the application for SSS Pension and intimated vide communication dated 17.9.1998. Being aggrieved by the inaction on the part of the State Government, writ petitioner preferred W.P(C).12465 of 2010 before this Court. 4. W.P(C).12465 of 2010 was disposed of by this Court on 28.7.2010, directing the State Government to forward the recommendations in respect of the claim of the petitioner’s husband to the Under Secretary to Government, Ministry of Home Affairs, Freedom Fighter’s Division, New Delhi, within one month from the date of receipt of a copy of the order. 5. In compliance with the order dated 28.7.2010, State Government issued a verification cum entitlement report dated _**W.A.2662/2017**_ 5 4.11.2010 to the Central Government/appellant herein. The appellant herein rejected the case of petitioner’s husband vide letter dated 14.2.2011, on the grounds, inter alia, that the writ petitioner had not submitted any acceptable record based on primary evidence, duly verified by the State Government, in support of her husband’s suffering. It was also stated therein that no cogent reason has been given by the State Government in their report. The State Government had only complied with the direction of the order of the High Court, but no enquiry was conducted to verify the claims of the writ petitioner. 6. Being aggrieved, writ petitioner filed W.P(C).No.14385 of 2011, seeking the following reliefs: “i) call for the records leading to Ext.P6 and quash the same by issuing a writ of certiorari. ii) issue a writ of mandamus or other appropriate writ, order or direction to the1st and 2[nd] respondents to sanction and disburse the Swatantrata Sainik Samman Pension with arrears from the date of Ext.P4 order to the petitioner without any delay.” 7. Writ Court, after considering the rival submissions, vide the judgment dated 16.12.2016 in W.P.(C) No.14385of 2011, held as under: _**W.A.2662/2017**_ 6 “7. Learned counsel for the respondents 1 and 2 argued that the documents Exts.P1 and P2 alone cannot be relied on for grant of SSS Pension, relying on the judgment of this Court in Sainaba v. Union of India [2006 (1) KLT 654]. There this Court held that when the certificates are not forthcoming, applicant has to obtain a Non Availability Record Certificate and has to independently fulfil the criteria laid down under the central scheme. But it is relevant to note that even in this judgment what this Court held is that as far as the central rules are concerned the applications should be scrutinized in consultation with the State Advisory Board on the basis of the copy of the application and evidence should be produced in accordance with paragraph 9 of the central scheme. In this case, the State Government has already certified that there is no record available in the jail regarding the imprisonment of the petitioner's husband or the original of the register. When the State Government has verified it and reported to the central government that the originals are not available and the petitioner has produced the extract of the registers, further requirement would not be there to produce any further evidence in support of the jail sufferings, when all the details regarding the case number, offences and the period of suffering are contained in the extract of the jail register. 8. Under the above circumstances, the rejection of the application of the petitioner cannot be held to be legal. The judgment of the Division Bench referred to by the learned counsel for the respondents does not stand in the way of the respondents in considering the evidence already furnished by the petitioner along with NARC. In that view of the matter the petitioner's application along with the certificates would be sufficient for grant of SSS Pension in accordance with the _**W.A.2662/2017**_ 7 Scheme. The observation that the petitioner underwent imprisonment on account of the freedom movement is not clear from the jail records is a hyper- technical reason found out by the respondent in order to deny the benefit of the Scheme. When entries are made in the jail register the superintendent of the jail would not be expected to write the manner in which the offence was committed at the relevant time. Under the above circumstances, Ext.P6 is set aside, the respondents shall pass orders on the basis of the application already submitted and the documents already produced by the petitioner for grant of SSS Pension to the petitioner on the basis of Ext.P5 within a period of three months from the date of receipt of copy of the judgment and to grant her the same along with arrears.” Being aggrieved, instant writ appeal is filed. 8. Heard learned counsel for the parties and perused the material on record. 9. The issues raised in the writ appeal have been decided by us in the judgment dated 25.08.2022 in W.A. Nos. 122 & 1691 of 2019. Operative portion of the said judgment is reproduced: “48. As regards the first ground for rejecting the claim of the respondent, as rightly observed by the writ court, there was no dispute as regards the authenticity and correctness of the jail certificate issued by the Superintendent of Central Prison, Thiruvananthapuram, _**W.A.2662/2017**_ 8 produced as Exhibit-P1 in W.P.(C) No.36191/2018 dated 20.07.1972. Perusal of ExhibitP1 extract of convict register shows that the case in which the husband of the respondent was convicted and sentenced is the one in relation to C.C. No.238/1124 ME on the file of the Divisional First Class magistrate's Court, Alappuzha for offenses under Section 9(5) of the Travancore Emergency powers Act, 1122. That apart, going through the letter dated 4.3.2014, produced as Exhibit-P8, it could be deduced that the State Government has verified the genuineness of the extract of Exhibit-P1 convict register through the Superintendent, Central Prison, Thiruvananthapuram, and he had certified it to be genuine. 49. Further, it is evident from Exhibit-P8 letter that, to substantiate the claim of the respondent, she has produced the true extract of the convict register, in original, wherein the date of admission of Mr. Bava Haridas, her husband, date of expiry of sentence; that he was released on 26.01.1950 under the order of Government; though the period of imprisonment is below six months, he was sentenced for six months; that remission of a period upto 30 days in a sentence of six months should be taken into consideration, etc., were stated. In fact, the husband of the respondent was also awarded Thamrapathra by the _**W.A.2662/2017**_ 9 Union Government, based on the recommendation of the State Government, on account of participation in the Punnapra-Vayalar movement. 50. Though it is stated in the letter dated 17.03.2015 by the State Government that on verification of the available convict judgment registers, the details regarding C.C. No.238/1124 ME are not available, and therefore, it is unable to mention that CC. No.238/1124 ME is pertinent to Punnapra Vayalar struggle, the said letter does not contain a specific verification and entitlement report. However, in ExhibitP8 letter dated 4.3.2014, the State Government has stated that the primary evidence and jail certificate/convict register, relied on by the respondent are genuine and hence, his case is positively recommended for grant of SSS Pension. As rightly observed by the learned single Judge, merely because the State Government has not reiterated the factual aspects in Exhibit-P12, cannot be a sole ground for rejecting the claim of the respondent. 51. In **Gurdial Singh v. Union of India** , [(2001) 8 SCC 8], the Hon’ble Supreme Court had occasion to consider a case where, for determination of eligibility, standard of proof is required for, and held that since the object of the Scheme is to honour and to mitigate the sufferings of the freedom fighters, a _**W.A.2662/2017**_ 10 liberal and not a technical approach should be adopted and hence, a claim under the Scheme should be determined on the basis of probabilities and not by applying the test of “beyond reasonable doubt”. Relevant portion of the said judgment reads thus: “6. The Scheme was introduced with the object of providing grants of pension to living freedom fighters and their families and to the families of martyrs. It has to be kept in mind that millions of masses of this country had participated in the freedom struggle without any expectation of grant of any scheme at the relevant time. It has also to be kept in mind that in the partition of the country most of the citizens who suffered imprisonment were handicapped to get the relevant record from the jails where they had suffered imprisonment. The problem of getting the record from a foreign country is very cumbersome and expensive. Keeping in mind the object of the Scheme, the authorities concerned are required that in appreciating the Scheme for the benefit of freedom fighters a rational and not a technical approach is required to be adopted. It has also to be kept in mind that the claimants of the Scheme are supposed to be such persons who had given the best part of their life for the country. This Court in Mukund Lal Bhandari case [1993 Supp (3) SCC 2] observed: (SCC pp. 7-8, para 9) “The object in making the said relaxation was not to reward or compensate for the _**W.A.2662/2017**_ 11 sacrifices made in the freedom struggle. The object was to honour and where it was necessary, also to mitigate the sufferings of those who had given their all for the country in the hour of its need. In fact, many of those who do not have sufficient income to maintain themselves refuse to take benefit of it, since they consider it as an affront to the sense of patriotism with which they plunged in the freedom struggle. The spirit of the Scheme being both to assist and honour the needy and acknowledge the valuable sacrifices made, it would be contrary to its spirit to convert it into some kind of a programme of compensation. Yet that may be the result if the benefit is directed to be given retrospectively whatever the date the application is made. The Scheme should retain its high objective with which it was motivated. It should not further be forgotten that now its benefit is made available irrespective of the income limit. Secondly, and this is equally important to note, since we are by this decision making the benefit of the Scheme available irrespective of the date on which the application is made, it would not be advisable to extend the benefit retrospectively. Lastly, the pension under the present Scheme is not the only benefit made available to the freedom fighters or their dependents. The preference in employment, allotment of accommodation and in admission to schools and colleges to their kith and kin etc. are also the other benefits which have been made available to them for quite sometime now.” _**W.A.2662/2017**_ 12 The Court categorically mentioned that the pension under the Scheme should be made payable from the date on which the application is made whether it is accompanied by necessary proof of eligibility or not. 7. The standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the Scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the Scheme. It should not be forgotten that the persons intended to be covered by the Scheme had suffered for the country about half-a-century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the Scheme. The case of the claimants under this Scheme is required to be determined on the basis of the probabilities and not on the touchstone of the test of “beyond reasonable doubt”. Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted _**W.A.2662/2017**_ 13 by cogent, reasonable and reliable evidence. 8. We have noticed with disgust that the respondent authorities have adopted a hypertechnical approach while dealing with the case of a freedom fighter and ignored the basic principles/objectives of the Scheme intended to give the benefit to the sufferers in the freedom movement. The contradictions and discrepancies, as noticed hereinabove, cannot be held to be material which could be made the basis of depriving the appellant of his right to get the pension. The case of the appellant has been disposed of by ignoring the mandate of law and the Scheme. The impugned order also appears to have been passed with a biased and closed mind, completely ignoring the verdict of this Court in Mukund Lal Bhandari's case [1993 Supp (3) SCC 2]. We further feel that after granting the pension to the appellant, the respondents were not justified in rejecting his claim on the basis of material which already existed, justifying the grant of pension in his favour. The appellant has, unnecessarily, been dragged to litigation for no fault of his. The High Court has completely ignored its earlier judgments in Mohan Singh v. Union of India [CWP No. 3790 of 1994 (HC)] decided on 1-61995 and CWP No. 14442 of 1995 decided on 11-12-1995. 10. Accordingly the appeal is allowed by setting aside the order of the High Court impugned in this appeal and the order of the respondents dated 1-11-2000 (Annexure P14). _**W.A.2662/2017**_ 14 The appellant is held entitled to the grant of pension by the State of Punjab and the Union Government as determined vide Annexures P-9 and P-10 but with effect from March,1996. The arrears shall be calculated and paid to the appellant positively within a period of six weeks from today, failing which he is held entitled to interest at the rate of 12% per annum from March 1996 till the date the arrears are actually paid. The appellant is also held entitled to the payment of costs quantified at Rs. 5000.” 52. A Hon’ble Division Bench of this Court in **Union of India v. Janakidas** reported in 2010 (1) KLT SN 79 (C. No.95) held that no individual citizen can be denied pensionary benefits under the scheme on any ground referable to delay by the State Government in forwarded papers to the Union of India. Relevant portion of the said decision is extracted hereunder: “7. We may notice that even among the fundamental duties of citizens, enumerated in Article 51A of the Constitution, particularly Clauses (b) and (d) thereof, every citizen of India is duty bound to cherish and follow the noble ideals which inspired our national struggle for freedom; and to defend the country and render national service when called upon to do so. We are considering the case of a person who, though now no more, had done what is cherished in Article 51A of the Constitution, long before India became _**W.A.2662/2017**_ 15 free. Therefore, in fact, there is no ground even for the Union of India to show that any delay that the State Government had committed in forwarding the papers should be considered against the interest of the petitioner for granting pension under the SSSP Scheme. The State Government and the Union Government are the executive limbs of the People of India as a Republican Nation and no individual citizen can be denied pensionary benefits referable to the SSSP Scheme, 1980 on any ground referable to the delay by the State Government in forwarding the papers to the Union of India. If such grounds were to be accepted, in our view, that will not serve, but defeat, the purpose sought to be achieved by the Scheme in question. We are also of the view that, what is indicative as the prime concept of the requirement of providing pension under the SSSP Scheme to the freedom fighter and family members, is part of the process by which the Nation follows the noble ideals which inspired those involved in the struggle for freedom.” 53. In **Kamalbai Sinkar** v. **State of Maharashtra** reported in (2012) 11 SCC 754, after considering the decision in **Gurdial Singh** (cited supra), the Hon’ble Supreme Court held as under: “6. Having perused the above materials on record, at the very outset, we wish to refer to the observations made by this Court in regard to the grant of freedom fighters' pension in _**W.A.2662/2017**_ 16 the decision in Gurdial Singh v. Union of India [(2001) 8 SCC 8]. In para 7 of the judgment, this Court has highlighted the manner in which such claims are to be considered for grant of freedom fighters' pension. It will be worthwhile to make a reference to the said passage before expressing our conclusion with regard to the claim of the appellant's husband in the case on hand. ## 7. Para 7 reads as under: (Gurdial Singh case [(2001) 8SCC 8] , SCC p. 14) “7. The standard of proof required in such cases is not such standard which is required in a criminal case or in a case adjudicated upon rival contentions or evidence of the parties. As the object of the Scheme is to honour and to mitigate the sufferings of those who had given their all for the country, a liberal and not a technical approach is required to be followed while determining the merits of the case of a person seeking pension under the Scheme. It should not be forgotten that the persons intended to be covered by the Scheme had suffered for the country about half-a-century back and had not expected to be rewarded for the imprisonment suffered by them. Once the country has decided to honour such freedom fighters, the bureaucrats entrusted with the job of examining the cases of such freedom fighters are expected to keep in mind the purpose and object of the Scheme. The case of the claimants under this Scheme is required to be determined on the basis of the probabilities and not on the touchstone of _**W.A.2662/2017**_ 17 the test of ‘beyond reasonable doubt’. Once on the basis of the evidence it is probabilised that the claimant had suffered imprisonment for the cause of the country and during the freedom struggle, a presumption is required to be drawn in his favour unless the same is rebutted by cogent, reasonable and reliable evidence.” ## (emphasis added) 54. The entire aspect of the matter was considered by the learned single Judge while passing the impugned judgment and directions were issued taking into account the provisions of Scheme, 1980, as well as the parameters required for the grant of SSS Pension to the eligible persons. 55. In sum and substance, the issues were elaborately considered by the learned single Judge, taking into account all the relevant materials, and we are of the clear opinion that there is no reason to interfere with the observations and findings made by the learned single Judge in the impugned judgments. 56. On a totality of the facts and circumstances, we have no hesitation to hold that the appellant has not made out a case of jurisdictional error or other legal infirmities, justifying interference in the judgments under appeals, dated 9.7.2018 and 29.11.2018 of the learned single Judge. _**W.A.2662/2017**_ 18 In the result, appeals fail and accordingly, they are dismissed.” 10. The findings and observations made in the judgment dated 25.08.2022 in W.A. Nos.122 & 1691 of 2019 would govern this writ appeal as well. In view of the above, this writ appeal is dismissed. Sd/S. Manikumar, Chief Justice Sd/Shaji P. Chaly, Judge sou.